Loading...
HomeMy WebLinkAboutContract No. 2015-2645This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the controlling Laws and Regulations. • „ • Prepared by EJCDC',-,-.. Issued and Published Jointly by Au" EC' A,m (AN ( -OV M I OF E c.iltlst[vc; c;c� tt.��r� -s A4�XE AMERICAN SOCIE i t O "'ML ENGVERS Jam; National Society of Professional 6l Endorsed by I WCS1 N., � , " q A EJCDC® C -520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Copyright @2O13: National Society of Professional Engineers l420 King Street, Alexandria, VA32314-2794 (783) 684-2882 American Council uf Engineering Companies 181515th Street 0.VV, Washington, DC20OOS (202) 347-7474 American Society nf Civil Engineers 1801 Alexander Bell Drive, Reston, VA2019l-4400 (800) 548-2723 The copyright for this BCDCdocunnent is owned jointly by the three sponsoring organizations listed above. The National Society ofProfessional Engineers is the Copyright Administrator for the BCDC documents; please direct all inquiries regarding EJCDC copyrights to NSPE. NOTE: BCDC publications may be purchased at or from any of the sponsoring organizations above. umCII C-520 (R�1), Agreement Between Owner and Contractor for Construction Contract (Stipulated *ice). Copyright C 2013 National Society mProfessional Engineers, American Council mEngineering Companies, and American Society v, Civil Engineers. All rights reserved. This Agreement between Owner and Contractor for Construction Contract (Stipulated Price) ( "Agreement ") has been prepared for use with the Suggested Instructions to Bidders for Construction Contracts ( "Instructions to Bidders ") (EJCDC° C -200, 2013 Edition); the Suggested Bid Form for Construction Contracts ( "Bid Form ") (EJCDC® C 410, 2013 Edition); and the Standard General Conditions of the Construction Contract ( "General Conditions ") (EJCDC° C -700, 2013 Edition). Their provisions are interrelated, and a change in one may necessitate a change in the others. See also the Guide to the Preparation of Supplementary Conditions (EJCDC° C -800, 2013 Edition), and the Commentary on the 2013 EJCDC Construction Documents (EJCDC® C -001, 2013 Edition). In construction contracting, as a general matter the "agreement" is the legal instrument executed (signed) by the project owner and the construction contractor, binding the parties to the terms of the contract. See CSI Project Delivery Practice Guide (2011), Section 11.1.2, p. 210, and CSI Construction Specification Practice Guide (2011), Section 5.1, p. 75. This EJCDC Agreement form serves that basic function, by identifying the parties and Contract Documents, and establishing the Contract Price and Contract Times. This Agreement form is specifically intended for stipulated price (fixed price) contracts —that is, contracts in which Owner and Contractor identify specific lump sums and unit prices as Contractor's compensation for performing the Work. For construction contracts in which the Contract Price is primarily based on costs incurred during construction, users should select EJCDC® C -525, Agreement between Owner and Contractor for Construction Contract (Cost - Plus). This Agreement form is drafted to be flexible enough to be used on projects that are competitively bid, and for public and private contracts that are negotiated or awarded through a proposal process or otherwise. On competitively bid projects, the following documentary information would typically be made available to bidders: • Bidding Requirements, which include the Advertisement or invitation to bid, the Instructions to Bidders, and the Bid Form that is suggested or prescribed, all of which provide information and guidance for all Bidders, and Bid Form supplements (if any) such as Bid Bond and Qualifications Statement. • Contract Documents, which include the Agreement, performance and payment bonds, the General Conditions, the Supplementary Conditions, the Drawings, and the Specifications. • Documents referred to in the Supplementary Conditions or elsewhere as being of interest to bidders for reference purposes, but which are not Contract Documents. Together, the Bidding Requirements and the Contract Documents are referred to as the Bidding Documents. (The terms "Bidding Documents," "Bidding Requirements," and "Contract Documents" are defined in Article 1 of the General Conditions.) The Bidding Requirements are not Contract Documents because much of their substance pertains to the relationships prior to the award of the Contract and has little effect or impact thereafter. Many contracts are awarded without even going through a bidding process, and thus have no Bidding Requirements, illustrating that the bidding items are typically superfluous to the formation of a binding and comprehensive construction contract. In some cases, however, a bid or proposal will contain numerous line items and their prices; in such case the actual bid or proposal document may be attached as an exhibit to the Agreement to avoid extensive rekeying. EJCDC• C -520 (Rev.1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page i Suggested provisions are accompanied by "Notes to User" and bracketed notes and prompts to assist in preparing the Agreement. The provisions have been coordinated with the other forms produced by EJCDC. Much of the language should be usable on most projects, but modifications and additional provisions will often be necessary. When modifying the suggested language or writing additional provisions, the user must check the other documents thoroughly for conflicts and coordination of terms, and make appropriate revisions in all affected documents. All parties involved in construction projects benefit significantly from a standardized approach in the location of subject matter throughout the documents. Experience confirms the danger of addressing the same subject matter in more than one location; doing so frequently leads to confusion and unanticipated legal consequences. When preparing documents for a construction project, careful attention should be given to the guidance provided in EJCDC° N- 122 /AIA® A521, Uniform Location of Subject Matter (2012 Edition), available at no charge from the EJCDC website, www.ejcdc.org, and from the websites of EJCDC's sponsoring organizations. CSI MasterFormatTM (50- Division format) designates Document "00 52 XX" for various forms of the owner - contractor agreement. If this format is used, the first page of the Agreement would be numbered 00 52 13 -1 (or other appropriate third pair of numbers, in accordance with MasterFormatTI). Instructions and restrictions regarding the use of this document are set out in the License Agreement that accompanied the document at the time of purchase. To prepare the Agreement for inclusion in a Project Manual or for use in a specific contractual engagement, (1) remove the cover pages and this Introduction, (2) fill in Project - specific information and make revisions to the Agreement, following the guidance in the Notes to Users and bracketed notes and prompts, and the advice of legal counsel, and (3) delete the Notes to Users and bracketed notes and prompts. EJCDC® C -520 (Rev.1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page ii AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) THIS AGREEMENT is by and between the CITY OF COLUMBIA HEIGHTS, MINNESOTA ( "Owner ") and PARK CONSTRUCTION COMPANY Owner and Contractor hereby agree as follows: ARTICLE 1— WORK ( "Contractor "). 1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: 2015 STREET REHABILITATION ZONE 1— PROJECT 1502 2015 STATE AID STREET OVERLAY — PROJECT 1505 ARTICLE 2 —THE PROJECT 2.01 The Project, of which the Work under the Contract Documents is a part, is generally described as follows: CITY PROJECT NO. 1502, S.A.P. 113 - 050 -013 ♦ STREET RECONSTRUCTION ♦ BITUMINOUS MILL /FDR AND OVERLAY ♦ CONCRETE CURB AND GUTTER ♦ CONCRETE SIDEWALK ♦ CONCRETE AND BITUMINOUS SURFACING ♦ MISCELLANEOUS CONSTRUCTION CITY PROJECT NO. 1505, S.A.P. 113 - 104 -013 ♦ STREET MILL AND OVERLAY ♦ CONCRETE CURB AND GUTTER ♦ CONCRETE SIDEWALK ♦ CONCRETE AND BITUMINOUS SURFACING ♦ MISCELLANEOUS CONSTRUCTION ARTICLE 3 — ENGINEER 3.01 The part of the Project that pertains to the Work has been designed by the CITY OF COLUMBIA HEIGHTS' ENGINEERING DEPARTMENT (ENGINEER). 3.02 The ENGINEER is to act as Owner's representative, assume all duties and responsibilities, and have the rights and authority assigned to Engineer in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. EJCDC® C -520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 7 ARTICLE 4 — CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.02 Contract Times: Dates A. The Work will be substantially completed on or before September 18, 2015, and completed and ready for final payment in accordance with Paragraph 15.06 of the General Conditions on or before October 16, 2015. 4.03 Liquidated Damages A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01 above and that Owner will suffer financial and other losses if the Work is not completed and Milestones not achieved within the times specified in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with the Contract. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by Owner if the Work is not completed on time. Accordingly, instead of requiring any such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty): 1. Substantial Completion: Contractor shall pay Owner $1,000.00 for each day that expires after the time (as duly adjusted pursuant to the Contract) specified in Paragraph 4.02.A above for Substantial Completion until the Work is substantially complete. 2. Completion of Remaining Work: After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining Work within the Contract Times (as duly adjusted pursuant to the Contract) for completion and readiness for final payment, Contractor shall pay Owner $1,000.00 for each day that expires after such time until the Work is completed and ready for final payment. 3. Liquidated damages for failing to timely attain Substantial Completion and final completion are not additive and will not be imposed concurrently. ARTICLE 5 — CONTRACT PRICE 5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents, subject to adjustment under the Contract: A. For all Work, at the prices stated in Contractor's Bid, attached hereto as an exhibit. B. The extended prices for Unit Price Work set forth as of the Effective Date of the Contract are based on estimated quantities. As provided in Paragraph 13.03 of the General Conditions, estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by Engineer. ARTICLE 6 — PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. Contractor shall submit Applications for Payment in accordance with Article 15 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. EJCDC® C -520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 7 6.02 Progress Payments, Retainage A. Owner shall make progress payments on account of the Contract Price on the basis of Contractor's Applications for Payment on or about the 151h day of each month during performance of the Work as provided in Paragraph 6.02.A.1 below, provided that such Applications for Payment have been submitted in a timely manner and otherwise meet the requirements of the Contract. All such payments will be measured by the Schedule of Values established as provided in the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no Schedule of Values, as provided elsewhere in the Contract. 1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as Owner may withhold, including but not limited to liquidated damages, in accordance with the Contract a. 95 percent of Work completed (with the balance being retainage). If the Work has been 50 percent completed as determined by Engineer, and if the character and progress of the Work have been satisfactory to Owner and Engineer, then as long as the character and progress of the Work remain satisfactory to Owner and Engineer, there will be no additional retainage; and b. 95 percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage). B. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to 98 percent of the Work completed, less such amounts set off by Owner pursuant to Paragraph 15.01.E of the General Conditions, and less 200 percent of Engineer's estimate of the value of Work to be completed or corrected as shown on the punch list of items to be completed or corrected prior to final payment. 6.03 Final Payment A. Upon final completion and acceptance of the Work in accordance with Paragraph 15.06 of the General Conditions, Owner shall pay the remainder of the Contract Price as recommended by Engineer as provided in said Paragraph 15.06. ARTICLE 7 — INTEREST 7.01 All amounts not paid when due shall bear interest at the rate stipulated in Minnesota Statute 161.322. ARTICLE 8 — CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce Owner to enter into this Contract, Contractor makes the following representations: A. Contractor has examined and carefully studied the Contract Documents, and any data and reference items identified in the Contract Documents. B. Contractor has visited the Site, conducted a thorough, alert visual examination of the Site and adjacent areas, and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. Contractor is familiar with and is satisfied as to all Laws and Regulations that may affect cost, progress, and performance of the Work. EJCDC® C -520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © Z013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 of 7 D. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or adjacent to the Site and all drawings of physical conditions relating to existing surface or subsurface structures at the Site that have been identified in the Supplementary Conditions, especially with respect to Technical Data in such reports and drawings, and (2) reports and drawings relating to Hazardous Environmental Conditions, if any, at or adjacent to the Site that have been identified in the Supplementary Conditions, especially with respect to Technical Data in such reports and drawings. E. Contractor has considered the information known to Contractor itself; information commonly known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Site - related reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor; and (3) Contractor's safety precautions and programs. F. Based on the information and observations referred to in the preceding paragraph, Contractor agrees that no further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract. G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents. H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor. I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. J. Contractor's entry into this Contract constitutes an incontrovertible representation by Contractor that without exception all prices in the Agreement are premised upon performing and furnishing the Work required by the Contract Documents. EJCDC® C -520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 of 7 ARTICLE 9 — CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 1 to _7_, inclusive). 2. Performance bond (pages 1 to 3 , inclusive). 3. Payment bond (pages 1 to 3 inclusive). 4. Other bonds. a. _ (pages _ to _, inclusive). 5. General Conditions (pages 1 to 65 inclusive). 6. Supplementary Conditions (pages 00700 -1 to 00700 -74 , inclusive). 7. Specifications as listed in the table of contents of the Project Manual. 8. Drawings (not attached but incorporated by reference) consisting of 2015 Street Rehabilitation: 19 sheets with each sheet bearing the project number 1502 and 2015 State Aid Street Overlay: 14 sheets with each sheet bearing the project number 1505. 9. Addenda (numbers 1 to 3 , inclusive). 10. Exhibits to this Agreement (enumerated as follows): a. Contractor's Bid (pages 10 to 19 , inclusive). 11. The following which may be delivered or issued on or after the Effective Date of the Contract and are not attached hereto: a. Notice to Proceed. b. Work Change Directives. c. Change Orders. B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified, or supplemented as provided in the General Conditions. EJCDC® C -520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 5 of 7 ARTICLE 10— MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 10.02 Assignment of Contract A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, money that may become due and money that is due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. Owner and Contractor each binds itself, its successors, assigns, and legal representatives to the other party hereto, its successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Contractor's Certifications A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 10.05: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the .action of a public official in the bidding process or in the Contract execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner, (b) to establish Bid or Contract prices at artificial non - competitive levels, or (c) to deprive Owner of the benefits of free and open competition; 3. "collusive practice" means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid prices at artificial, non - competitive levels; and 4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. 10.06 Other Provisions (if applicable). EJCDC® C -520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 6 of 7 IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement. This Agreement will be effective on April 13, 2015 (which is the Effective Date of the Contract). OWNER: CONTRACTOR: [CORPORATE SEAL] r'? Attest: ,1v� Title: ' dI Address for giving notices: City of Columbia Heights 63738 th Avenue NE Columbia Heights, MN 55421 (if OWNER is a corporation, attach evidence of authority to sign. If OWNER is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of OWNER - CONTRACTOR Agreement.) Designated Representative: Name: Kevin Hansen Title: City Engineer Address: 637 38th Avenue NE Columbia Heights, MN 55421 Phone: 763- 706 -3705 [CORPORATE SEAL] License No.: l (Where applicable) Agent for service of process: u_ u 0 &A &, (If Contractor is a corporation, a partnership, or a joint venture, attach evidence of authority to sign.) Designated Representative: Phone: EJCDC® C -520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright O 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 7 of 7 EJCDC 101, conoJCLoYWj C PERFORMANCE BOND CONTRACTOR {name and address); SURETY (name and address of principal place of business): Park Construction Company Western Surety Company 1481 81st Avenue NE 333 S. Wabash Ave. Minneapolis, MN 55432 Chicago, IL 60604 OWNER (name and address): City of Columbia Heights 590 40th Ave. N.E. Columbia Heights, MN 55421 CONSTRUCTION CONTRACT Effective Date of the Agreement: April 13, 2015 Amount: $779,143.80 Description (name and location).2015 Street Rehabilitation, Zone 1 - Project 1502 and 2015 State Aid Street Overlay - Project 1505 BOND Bond Number: 929613217 Date (not earlier than the Effective Date of the Agreement Of the Constructlan Contract): Apri12 4, 2015 Amount: $779,143.80 Modifications to this Bond Form: [] None ❑ See Paragraph 26 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Performance Bond to be duly executed by an authorized officer, agent, or representative, CONTRACTOR AS PRINCIPAL Park Construction Company (seal) Contractor's Name and Car to Seal Sys Signature Michael Christianson Vice President Print Name iitfe SURETY Western Surety Company Print Name Attornev -in -Fact Title Attest: Signature Suretv Account Representative Title Notes. (11 provide supplemental execution by any additional parties, such asJolnt venturers. (2) Any singular reference to Contractor, Surety, Owner, or other party.sholl be considered plural where applicable, EJCDC' C -614, Performance sand Copyright 0 2013 National Society of Professional Engineers, American Coundlof Engineering Companies, and American Society of Civil Engineers. All rights reserved. l of 3 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors; administrators, successors, and assigns to the owner for the performance of the Construction Contract, which is Incorporated herein by reference. 2. if the contractor performs the Construction Contract, the Surety and the Contractor shalt have no obligation under this Pond, except when applicable to participate In a conference as provided in Paragraph3. 3. If there is no Owner Default under the Construction Contract; theSuretys obligation under this Bond shat! arise after: 3.1 The Owner first provides notice to the Contractor and the Surety that the owner is considering declaring a Contractor Default. Such notice shall Indicate whether the Owner is requesting a conference among the Owner, Contractor, and Surety to discuss the Contractor's performance. if the owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. unless the Owner agrees otherwise, any conference requested ;under this Paragraph 3.1 shall be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the owner, the Contractor, and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, If any, subsequently to declare a Contractor Default; 3.2 The Owner declares a Contractor Default, terminates the Canstruction Contract and notifies the Surety; and 33 The owner has agreed to pay the Balance of the Contract Price In accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Corstruetton Contract. t. Failure on the part of the Owner to comply with the notice apulrement in Paragraph 3.1 shall not constitute a failure to comply rrith a condition precedent to the Surety's obligations, or release the iuretf from Its obligations, except to the extent the Surety iemonstrates actual prejudice. I. When the Owner has satisfied the conditions of Paragraph 3, the iurety, shall promptly and at the Surety's expense take one of the ollowing actions: 511 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; 512 undertake to perform and complete the Construction Contract itself, through Its agents or Independent contractors; owner and a contractor selected with the Owners concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the < bonds Issued on the Construction Contract, and pay to the Owner the amount of damages as described In Paragraph 7 I excess of the Balance of the Contract Price Incurred by the owner as a result of the Contractor Default; or 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor, and with reasonable promptness under the circumstances: 5.4.3 After investigation, determine the amount for which It may be liable to the Owner and, as soon as practicable after the amount Is determined, make payment to the owner; or S.A.2 Deny liability In whole or In part and notify, the Owner, citing the reasons fordental. 6. it the Surety does not proceed as provided In Paragraph 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the owner. If the Surety proceeds as provided In Paragraph S.4, and the Ownerrefuses the payment or the Surety has denied liability, in whole or In part, without further notice the Wrier shall be entitled to enforce any remedy available to the Owner. 7. if the surety elects to act under Paragraph S.i, 5.2, arS3, then the responsibilities of the Surety to the owner shall not be greater than those of the Contractor under the Constructlon Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety Is obligated, without duplication for. 7.3 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 7.2 additional legal, design professional, and delay costs resulting from the Contractor's Default, and resulting from the actions crfalture to actof the Surety underParegraph 5-,and 7.3 liquidated damages, or If no liquidated damages are specified In the Construction Contract, actual damages caused by delayed performance ornon- performance of the Contractor. 8, If the Surety elects to act under Paragraph 5.11 S.3, or S.4, the Surety's ilabliftyis limited to the amount o €this Bond. 9. The Surety shall not be liable to the owner or others for S.3 Obtain bids or negotiated proposals from qualified obligations of the Contractor that are unrelated to the Construction contractors acceptable to the owner for a contract for Contract, and the Balance of the Contract Price shall not be reduced performance and completion of the Construction Contract, or set off on account of any such unrelated obligations. No right of arrange for a contract to be prepared for execution by the action shall accrue on this Bond to any person or entity other than EiCDC• C- 610,?erformance Bond copyright eS 2023 National soctetyof Professional Engtneen, American caunt[l of En &Sneering companies, andAmorican SodetYOf 0vtl Engtneers. All rights reserved. 2013 the Owner or its heirs, executors, administrators, successors, and assigns. 10. The Surety hereby waives notice of any change, Including changes of time, to the Construction Contract or to related subcontracts, purchase orders, and other obligations. 11. Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location In which the work or part of the work Is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform Its obligations under this Bond, whichever occurs first, if the provisions of this paragraph are void or prohibited by law, the minimum periods of limitations available to suretles as a defense in the jurisdiction of the suit shall be applicable. 12. Notice to the Surety, the Owner, or the Contractor shall be mailed or delivered to the address shown on the page on which their signatureappears. 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision In this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and Provisions conforming to such statutory or other legal requirement shall be deemed Incorporated herein. When so furnished, the Intent is that this Bond shall be construed as a statutory bond and not as a -common law bond. 14. Derrnitlons 14.1 Balance of the Contract Price: The total amount payable by the owner to the Contractor under the Construction Contract after all proper adjustments have been made Including allowance for the Contractor for any amounts received or to be received bythe Ownerin settlementof Insurance or othercialms for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 14.2 Construction Contract: The agreement between the Owner and Contractor identified on the cover page, Including all Contract Documents and changes made to the agreement and the Contract Occuments. 14.3 Contractor Default: Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. 14.4 Owner Default: Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. 14.5 Contract Documents: All the documents that comprise the agreement between the Owner and Contractor. 15. if this Bond is Issued for an agreement between a contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. 16. Modifications to this Bond areas follows: UCK* ¢610, Performance bond Copyright (D 2033 National S4dety otProfesslonat Engineer, Amerlcan Council of Engineering Companies, and American SOCie tyof Civil Engineers. All rights reserved. 341`3 E Xt Vioxim i0m tCmmT OtlCOM coulmnur CONTRACTOR (name &ndocrdress): Park Construction Company 1481 81st Avenue NE Minneapolis, MN 55432 OWNER (namc and address): City of Columbia Heights 590 40th Ave. N.E. Columbia Heights, MN 55421 CONSTRUCTION CONTRACT PAYMENT BOND Effective Date of the Agreement: April 13, 2015 Amount., $779,143.80 SURETY jnameand address ofprtnctpalptaceafbusrness): Western Surety Company 333 S. Wabash Ave. Chicago, IL 60604 Description jnameandlaccttan): 2015 Street Rehabilitation, Zone 1 - Project 1502 and 2015 State Aid Street Overlay - Project 1505 BOND Bond Number, 929613217 Date (not eadlerthan the EffeCtNe Date of theAgreemenrof the Constme0on contract). April 24, 2015 Amount: $779,143.80 Modifications to this Bond Form: 0 None ❑ See Paragraph is Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Payment Bond to be duty executed by an authorized officer, agent, or representative. CONTRACTOR AS PRINCIPAL Park Construction Company (seat) Contractor's Name and Coro al signature Michael Christianson Vice President Print Name 'fide SURRY Western Surety Company Print Name Attorney -in -Fact Title f n Attest" Signature Suretv Account Representative Title Notes: III AravPdesupptentCnt, rtexecuttanbyanyaddtt '0n01partles,sucha 10t4fveaturers. (2)Anysingularreforerrse to contraetor,5urety, Owner, or other partyshtrll be constdered plural where applicable. ti7CDC° C-615, Payment Bond -- Copyright Ct 2033 NstTQnst Sudety of PrafesslonatEngtneaa,Amedcan Coundl of Engineertng Companies, andAmedean $odctyof +Gv9 Engtoeers. At rights reseryad. 101`3 6. If a notice of non- payment required by Paragraph 5.1.1 is 1. The Contractor and Surety, jointly and severally, bind given by the Owner to the Contractor, that is sufficient to themselves, their heirs, executors, administrators, satisfy Claimants obligation to furnish awritten notice of successors, and assigns to the Owner to pay for labor, non - payment under Paragraph S.I.I. materials, and equipment furnished for use In the performance of the Construction Contract, which Is 7. When a Ctatmant has satisfied the conditions of Paragraph incorporated herein by reference, subject to the following 5.1 or 5.2, whichever Is applicable, the Surety shalt terms. promptly and at the Surety's expense take the following actions: 2. If the Contractor promptly makes payment of alt sums due to Claimants, and defends, Indemnifies, and holds 7.1 Send an answer to the Claimant, with a copy to the harmless the Owner from claims, demands, liens, or suits Owner, within sixty (50) days after receipt of the by any person or entity seeking payment for tabor, Cl aim, stating the amounts that are undisputed and materials, or equipment furnished for use In the the basis for challenging any amounts that are performance of the construction Contract, then the Surety disputed,-and and the Contractor shall have no obligation under this Bond. 7.2 Pay or arrange for payment of any undisputed amounts. 3. if there Is no owner Default under the Construction Contract, the Suretys obligation to the Owner under this 7.3 The Surety`s failure to discharge its obligations Bond shall arise after the owner has promptly notified the under Paragraph 7.1 or 7.2 shall not be deemed to Contractor and the Surety (at the address described in constitute a waiver of defenses the Surety or Paragraph 13) of claims, demands, liens, or suits against Contractor may have or acquire as to a Claim, the owner or the owner's property by any person or except as to undisputed amounts for which the entity seeking payment for labor, materials, or equipment Surety and Claimant have reached agreement. if, furnished for use In the performance of the Construction however, the Surety falls to discharge its Contract, and tendered defense of such claims, demands, obligations under Paragraph 7.1 or 7.2, the Surety liens, orsuitstothe contractor and the Surety. shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to Q. When the owner has satisfied the conditions In Paragraph recover any sums found to be due and owing to 3, the Surety shalt promptly and at the Surety's expense the Claimant. defend, indemnify, and hold harmless the Owner against a duty tendered claim, demand, lien, or suit. 8. The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's S. The SureWs obligations to a Claimant under this Bond fees provided under Paragraph 7.3, and the amountof this shall arise after the following: Bond shall be credited for any payments made In good faith by the Surety. 5.3 Claimants who do not have a direct contract with the Contractor, 9. Amounts owed by the owner to the Contractor under the Construction Contract shall be used for the performance 5,1.1 have furnished a written notice of non- of the Construction Contract and to satisfy claims, If any, payment to the Contractor, stating with under any construction performance bond. By the substantial accuracy the amount claimed Contractor furnishing and the owner accepting this Bond, and the name of the party to whom the they agree that all funds earned by the Contractor In the materials were, or equipment was, performance of the Construction Contract are dedicated furnished or supplied ar for whom the to satisfy obligations of the Contractor and Surety under tabor was done or performed, within this Bond, subject to the owner's priority to use the funds ninety (90) days after having last forthe completion of the work. performed tabor or last furnished materials or equipment Included in the 10. The Surety shall not be liable to the owner, Claimants, or Claim, and others for obligations of the Contractor that are unrelated to the Construction Contract. The owner shift not be 5.1.2 have sent a Claim to the Surety (at the liable for the payment of any costs or expenses of any address described In Paragraph 13). Claimant under this Bond, and shall have under;thts Bond no obligation to make payments to or give notice on 5.2 Claimants who are employed by or have a direct behalf of Claimants, or otherwise have any obligations to contract with the Contractor have sent a-Clalm to Claimants under this Bond. the Surety (at the address described In Paragraph 1g). 11. The Surety hereby waives notice of any change, 12icluding changes of time, to the Construction Contract ortb related subcontracts, purchase orders, and other obligations. Ercoc" C-4sS, Payment Bond Copyright 0 2013 National Society of Professional Engineers,American council of Engineering cornpantet, and AmerlcanSodetyof civil Engineers. Alt fights reterved. 2of 3 12. No suit oraction shall be commenced by Claimant under this Bond other than In a court of competent jurisdiction In the state In which the project that Is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Paragraph 5.1.2 or 5.2, or (2) on which the Iast tabor or service was performed by anyone orthe last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. it the provisions of this paragraph are vold or prohibited by law, the minimum period of Limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 13. Notice and Claims to the Surety, the Owner, or the. Contractor shall be malted or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the date received. 14. When this Bond has been fumished to comply with a statutory or other legal requirement In the location where the construction was to be performed, any provision In this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shalt be deemed Incorporated herein. When so furnished, the intent Is that this Bond shall be construed as a statutory bond and not as a common law bond. 15. upon requests by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shell permit a copy to be made. 1s. Definitions 16.1 Claim: A written statement by the Claimant including eta minimum: 1. The name of the Claimant; 2. The name of the person for whom the labor was done, or materials or .equipment furnished; 3. A copy of the agreement -or purchase order pursuant to which tabor, materials, or equipment was furnished for use In the performance of the Construction Contract; 4. A brief description of the tabor, materials, or equipment furnished; S. The date on which the Claimant last performed tabor or last furnished materials of equipment for use in the performance of the Construction Contract; 6. The total amount earned by the Claimant for labor, materials, or equipment furnished as of the date of the Claim; 7. The total amount of previous payments received by the Claimant; and 8. The total amount due and unpaid to the Claimant for labor, matetlats, or equipment furnished as of the date of the Claim. 162 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish tabor, materials, or equipment for use In the performance Of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The Intent of this Bond shall be to include without limitation in the terms of "tabor, materials, or equipment" that part of the water, gas, power, light, heat oif, gasoline, telephone service, or rental equipment used In the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other Items for which a mechantcs lien may be asserted In the jurisdiction where the tabor, materials, or equipment were furnished. 16.3 Construction Contract; The agreement between the Owner and Contractor identified on the cover page, Including all Contract documents and all changes made to the agreement and the Contract Documents. 16.4 Owner Default: failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform-and complete or.comply with the other material terms of the Construction Contract. 16.5 Contract Documents: All the documents that comprise the agreement between the Owner and Contractor, 17. It this Bond Is Issued for an agreement between a contractor and subcontractor, the term Contractor In this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. 18, Modifications to this Bond are as follows: EJCDC• C-615, Payment Pond Copyright 0 2013 Mtionat Society of professional Engineers, American Cauncll of Engineering companies, and American 5odetyoitrvil Engineers. All rights reserved. 3 of 3 CORPORATE ACKNOWLEDGMENT State of 1 �' ) ss County of e ) Notary Public Lb-rlzu '7' Count ,pTl' My commission expires C� ,NNESOTA } Expires :s1, 2019 SURETY ACKNOWLEDGMENT State of Minnesota ) ) ss County of Hennepin ) On this 24th day of April 2015 , before me appeared Joshua R. Loftis to me personally know, who being by me duly sworn, did say that (s)he is the Attorney -in -Fact of Western Surety Company , a corporation, that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that said instrument was executed in behalf of said corporation by authority of its Board of Directors; and that said Joshua R. Loftis acknowledged said instrument to be the free act and deed of said corporation. Y x �y NICOLE MARIE STILLINGS s NOTARY PUBUC- MINNESOTA Notary Public Dakota County, My Commission Expires January 31, 2020 My commission expires 1/31/2020 Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Bruce N Telander, Donald R Olson, R Scott Egginton, John E Tauer, Linda K French, D R Dougherty, Jack Cedarleaf II, Kurt C Lundblad, Craig Remick, Jerome T Ouimet, Roger W Frank, Nicole Stillings, Rachel Thomas, Joshua R Loftis, Brian J Oestreich, Melinda C Blodgett, Sandra M Doze, Lin Ulven, Individually of Minneapolis, MN, its true and lawful Attorney(s) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 23rd day of May, 2014. WESTERN SURETY COMPANY ... .. . . . . . . . .. . : °a '�? �W14 �ty� kyOVT..._ .•µplay, aul T. BruflaC, Vice President State of South Dakota ss County of Minnehaha On this 23rd day of May, 2014, before me personally came Paul T. Bruflat, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires +YhhYYYhYYYYYYYhhhYYYYYYh� J. MOHR s s NOTARY PUBLIC SEAL June 23, 2015 S SEAL /� s ^SOUTH DAKOTA {hYhYYYYYYYYYYYYhYYYYhhYY} J. Mohr, Notary Public CERTIFICATE I, L, Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 24th day of April �"P�OQ` ?Oggi�o' efq:y C1t Y' s lilt", �t ", 'T V '/* fA •` Fonu F4280 -7 -2012 , 2015 . WESTERN SURETY COMPANY L. Nelson, Assistant Secretary Authorizing By -Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the shareholders of the Company. Section 7. All bonds, policies, undertakings, Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile.